Citation Nr: 0028010
Decision Date: 10/24/00 Archive Date: 11/01/00
DOCKET NO. 97-15 998 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Washington,
DC
THE ISSUE
Entitlement to service connection for liver problems,
headaches, a lung condition to include shortness of breath,
dizziness, fatigue, blackouts, and chest pains with an
irregular heart beat, all claimed as due to exposure to
herbicide agents.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. A. Herman, Associate Counsel
INTRODUCTION
The veteran had active military service from July 1958 to
April 1963, and from July 1967 to July 1969.
This appeal arises from an April 1996 rating decision of the
Washington, DC, regional office (RO) which determined that
the veteran's claim for service connection for the residuals
of chemical exposure was not well grounded. The notice of
disagreement was received in November 1996. The statement of
the case was issued in March 1997. The veteran's substantive
appeal was received in April 1997.
The Board of Veterans' Appeals (Board) observes that the
veteran's claim seeking service connection for residuals of
exposure to Agent Orange exposure was originally received in
October 1982 and denied by an April 1983 rating decision.
Since that time, a United States District Court has voided
all benefit denials under 38 C.F.R. § 3.311a, the "dioxin"
(Agent Orange) regulation, which had been promulgated under
the Veteran's Dioxin and Radiation Exposure Compensation
Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725,
2727-29 (1984), and 38 U.S.C.A. § 1154(a) (West 1991), and
remanded those cases to the Department of Veterans Affairs
(VA) for revision of the regulation in accordance with the
ruling of the Court. See Nehmer v. United States Veterans
Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989).
Final regulations were promulgated by VA in February 1994,
and have been amended since then. Accordingly, this matter
has been considered on a de novo basis, based upon current
regulations.
The Board also notes that the veteran filed a request in July
1998 for an earlier effective date for the grant of service
connection for post-traumatic stress disorder (PTSD). The RO
does not appear to have adjudicated this issue.
Nevertheless, as the question of the veteran's entitlement to
an effective date earlier than October 20, 1982, for the
grant of service connection for PTSD is not inextricably
intertwined with the current appeal, the issue is referred to
the RO for the appropriate action.
Finally, the record shows that the veteran requested that he
be scheduled for a personal hearing before a member of the
Board in Washington, DC. Such a hearing was scheduled on
September 12, 2000. Notice of the scheduled hearing was
provided to the veteran by a letter dated in July 2000. The
veteran failed to report for the hearing.
FINDINGS OF FACT
1. The veteran had active military service in the Reublic of
Vietnam during the Vietnam era.
2. The veteran has been diagnosed as having left ventricular
hypertrophy with first degree AV block, chronic obstructive
pulmonary disease, and hyperinflation and bulbous disease of
the lungs.
3. The veteran has not been diagnosed with any disorder
recognized by VA as being etiologically related to exposure
to herbicide agents used in Vietnam.
4. There is no competent medical evidence linking the
veteran's left ventricular hypertrophy with first-degree AV
block, chronic obstructive pulmonary disease, and/or
hyperinflation and bulbous disease of the lungs with his
alleged exposure to herbicide agents used in Vietnam.
5. The veteran's claim for service connection for liver
problems, headaches, a lung condition to include shortness of
breath, dizziness, fatigue, black-outs, and chest pains with
an irregular heart beat, as all claimed as due to exposure to
herbicide agents, is not plausible under the law.
CONCLUSION OF LAW
The claim of entitlement to service connection for liver
problems, headaches, a lung condition to include shortness of
breath, dizziness, fatigue, black-outs, and chest pains with
an irregular heart beat as secondary to exposure to herbicide
agents is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
At the time of his entrance examination for his second period
of active military service, the veteran was discovered to
have a persistent first-degree A-V block. An August 1967
consultation report indicated, however, that there was no
clinical evidence of organic heart disease. The veteran
reported that he had been asymptomatic.
In February 1968, the veteran was seen for complaints of
having a pain at the base of his neck. His head, ears, eyes,
nose, and throat were reported to be "okay." His neck was
supple. His chest was clear. His abdomen and extremities
were normal. His history of having a first-degree A-V block
was noted. Diagnosis was deferred.
The veteran was evaluated in September 1968 for a complaint
of generalized myalgia. His lungs were clear to
auscultation. His pharynx was erythematous. His cervical
lymph nodes were slightly swollen. He was told to gargle a
salt water solution. The next day, he reported that he was
feeling "much improved." There were no findings pertaining
to Agent Orange or being sprayed by any other type of
herbicide/chemical.
On a Report of Medical Examination pending service discharge,
the veteran's lungs, heart, abdomen and viscera, and
neurological system were all found to be normal. His service
personnel records indicate that he had active military
service in the Republic of Vietnam during the Vietnam era.
The veteran filed a claim for service connection for multiple
conditions, to include numbness of the extremities and lung
problems, in October 1982. In a statement received in
December 1982, he indicated that he received in-service
treatment for chest and neck pain, shortness of breath, and a
"strange fever" that was accompanied by a raw throat,
sweating, headaches, and swollen glands. He stated these
symptoms/problems occurred after he had been sprayed with an
unknown chemical.
The veteran was afforded VA Agent Orange and general medical
examinations in December 1982. He contended that he was
sprayed numerous times during his service in Vietnam. He
discussed the nature of his exposures in great detail. The
veteran complained of lung problems, excessive perspiration,
chest pain, chronic fatigue, and numbness of the extremities.
He also endorsed constant headaches that were sometimes
aggravated by stress.
On physical examination, the veteran's lymphatic system,
head, and neck were normal. There were no abnormalities
noted on palpation or percussion of the chest. The lung
fields were clear to auscultation. While he complained of
having pain in the base of the right hemithorax abdomen,
there was no hepatosplenomegaly. Percussion of the liver
area was not painful. The veteran had a decreased pinprick
sensation on the lateral aspect of his left calf between his
knee and mid-calf. There was full sensation of the feet.
Motor strength was 5/5 throughout. His cardiovascular
examination was essentially negative. Blood and liver
studies revealed no problems. A first degree AV block as
demonstrated on cardiovascular examination. A chest X-ray
showed hyperinflation of the lungs and what was believed to
be a small bulla in the right apex. The heart was not
enlarged. The diagnoses were indicated as no evidence of
liver disease; voltage criteria for left ventricular
hypertrophy and first degree AV block on electrocardiogram,
but otherwise normal cardiovascular exam; hyperinflation and
bullous lung disease on chest X-ray; and sensory loss in
distribution of left common peroneal nerve.
By a rating action dated in April 1983, service connection
was denied for left common peroneal nerve deficit (claimed as
a residual of Agent Orange exposure), hyperinflation of the
lungs and small bullae, and an A-V heart block. The RO
determined that there was no evidence associating the
veteran's left common peroneal nerve deficit with his
presumed exposure to Agent Orange. The veteran's
hyperinflation of the lungs and small bullae and A-V heart
block were found to be unratable disorders which were only
manifested on clinical study.
In September 1995, the veteran filed a claim for service
connection for psychiatric problems and the residuals of
"exposure to chemicals." He reported receiving treatment
for various physical problems through the Washington VA
Medical Center (VAMC) in 1986.
A request for the veteran's inpatient and outpatient
treatment records from April 1984 to the present was sent to
the Washington VAMC. In response thereto, medical records
dated from June 1984 to November 1984 were received from that
facility. They show that, in June 1984, the veteran was
admitted to the Washington VAMC due to complaints of alcohol
abuse and depression. Physical examination was essentially
negative. A chest X-ray showed no gross changes since 1982.
Hyperinflation of the lungs was again present. There was
also a calcified granuloma in the right lower lobe.
In November 1984, the veteran was seen for complaints of
right-side back pain. His head, ears, eyes, nose, and throat
were within normal limits. His heart had a regular rate and
rhythm. Respiratory sounds were clear. The veteran had
decreased vibration sense of the lower extremities. The
impression was "rule-out" L4 disc versus muscle spasm.
Medical records from the Prince George's Hospital Center,
dated in March 1995, show that the veteran was admitted with
complaints of severe, sharp pain in the left side of the
chest and back for the past eight to nine hours. He denied
any significant past medical history. He said he had
undergone surgery for a ruptured disc a few years earlier.
Head, ears, eyes, nose, and throat examinations were within
normal limits. The chest was clear to auscultation. There
were no rales. There was reduced air entry in the left lobe.
S1 and S2 were positive, with no murmurs. The abdomen was
soft and non-tender, with no masses. There were no
neurological focal deficits. A chest X-ray revealed chronic
obstructive pulmonary disease changes bilaterally, but there
was no consolidation.
In April 1996, the RO determined that the veteran's claim for
service connection for the residuals of chemical exposure was
not well grounded. The RO held the veteran had failed to
submit evidence of a disability for which he could receive
compensation under the law.
In a statement received in May 1997, the veteran's
representative identified the disorders that were alleged to
have been caused by the veteran's exposure to herbicides. He
stated that the veteran suffered from chronic liver problems,
headaches, a lung disorder with shortness of breath, fatigue,
dizziness, blackouts, and chest pain with an irregular
heartbeat. He said the evidence of record clearly
demonstrated that the veteran had active service in Vietnam
during the Vietnam era.
By a rating action dated in April 1998, service connection
for liver problems, a lung disorder with shortness of breath,
a headaches, dizziness, fatigue, blackouts, and chest pain
with an irregular heart beat as a result of exposure to
herbicide/chemical exposure was denied. The RO found that
the veteran had not been diagnosed with any of the enumerated
diseases that were presumed to be caused by herbicide
exposure. Moreover, it was observed that medical evidence
demonstrating an etiological relationship between the
veteran's problems and his military service had not been
submitted. A supplemental statement of the case was mailed
to the veteran in September 1998.
II. Analysis
The veteran has argued, through his representative, that his
inservice exposure to chemicals/herbicides/Agent Orange is
the cause of his current liver problems, headaches, lung
disorder with shortness of breath, fatigue, dizziness,
blackouts, and chest pain with an irregular heartbeat. In
that respect, the Board notes that the threshold question to
be answered is whether he has presented a well-grounded
claim. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski,
1 Vet.App. 49 (1990). If he has not, the claim must fail,
and there is no further duty to assist in its development.
38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78
(1990). This requirement has been reaffirmed by the United
States Court of Appeals for the Federal Circuit in its
decision in Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir.
1997), cert denied sub nom. Epps v. West, 118 S. Ct. 2348
(1998). That decision upheld the earlier decision of the
United States Court of Appeals for Veterans Claims
(previously known as the Court of Veterans Appeals), which
made clear that it would be error for the Board to proceed to
the merits of a claim which is not well grounded. Epps v.
Brown, 9 Vet.App. 341 (1996). See also Morton v. West,
12 Vet.App. 477, 480-1, mot. for en banc consid. denied, 13
Vet.App. 205
(per curiam order) (1999).
The Court of Appeals for Veterans Claims has also held that,
in order to establish that a claim for service connection is
well grounded, there must be competent evidence of: (1) a
current disability (a medical diagnosis); (2) the incurrence
or aggravation of a disease or injury in service (lay or
medical evidence); and (3) a nexus (that is, a connection or
link) between the in-service injury or aggravation and the
current disability. Competent medical evidence is required
to satisfy this third prong. See Elkins v. West, 12 Vet.App.
209, 213 (1999) (en banc), citing Caluza v. Brown, 7 Vet.App.
498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table).
"Although the claim need not be conclusive, the statute
[38 U.S.C.A. §5107] provides that [the claim] must be
accompanied by evidence" in order to be considered well
grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).
In a claim of service connection, this generally means that
evidence must be presented which in some fashion links the
current disability to a period of military service or to an
already service-connected disability. 38 U.S.C.A. § 1110
(West 1991); 38 C.F.R. § 3.303 (1999); Rabideau v. Derwinski,
2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App.
343 (1993).
Evidence submitted in support of the claim is presumed to be
true for purposes of determining whether it is well grounded.
King v. Brown, 5 Vet.App. 19, 21 (1993). Lay assertions of
medical diagnosis or causation, however, do not constitute
competent evidence sufficient to render a claim well
grounded. Grottveit v. Brown, 5 Vet.App. 91, 93(1992);
Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). To
establish a showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time. 38 C.F.R. § 3.303(b)
(1999). If chronicity in service is not established, a
showing of continuity of symptoms after discharge is required
to support the claim. Id. Service connection may be granted
for any disease diagnosed after discharge, when all of the
evidence establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d) (1999).
As to the specific contention that the veteran was exposed to
Agent Orange, which resulted in his developing the disorders
for which he claims service connection, the Board observes
that a veteran who, during active military, naval, or air
service, served in the Republic of Vietnam during the Vietnam
era and has a disease listed at 38 C.F.R. § 3.309(e), shall
be presumed to have been exposed during such service to a
herbicide agent, unless there is affirmative evidence to
establish that the veteran was not exposed to any such agent
during that service. The last date on which such a veteran
shall be presumed to have been exposed to a herbicide agent
shall be the last date on which he or she served in the
Republic of Vietnam during the Vietnam era. "Service in the
Republic of Vietnam" includes service in the waters offshore
and service in other locations if the conditions of service
involved duty or visitation in the Republic of Vietnam. 38
C.F.R. § 3.307(a)(6)(iii).
If a veteran was exposed to a herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected if the requirements of 38 U.S.C.A. §
1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there
is no record of such disease during service, provided further
that the rebuttable presumption provisions of 38 U.S.C.A. §
1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or
other acneform diseases consistent with chloracne, Hodgkin's
disease, multiple myeloma, non-Hodgkin's lymphoma, acute and
subacute peripheral neuropathy, porphyria cutanea tarda,
prostate cancer, respiratory cancers (cancer of the lung,
bronchus, larynx, or trachea), and soft-tissue sarcomas
(other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma,
or mesothelioma). 38 C.F.R. § 3.309(e). For purposes of
this section, the term acute and subacute peripheral
neuropathy means transient peripheral neuropathy that appears
within weeks or months of exposure to a herbicide agent and
resolves within two years of date on onset. 38 C.F.R. §
3.309(e), Note 2 (1999).
The diseases listed at 38 C.F.R. § 3.309(e) shall have become
manifest to a degree of 10 percent or more at any time after
service, except that chloracne or other acneform disease
consistent with chloracne and porphyria cutanea tarda shall
have become manifest to a degree of 10 percent or more within
one year, and respiratory cancers within 30 years, after the
last date on which the veteran was exposed to an herbicide
agent during active military, naval, or air service. 38
C.F.R. § 3.307(a)(6)(ii).
Notwithstanding the foregoing presumption provisions, which
arose out of the Veteran's Dioxin and Radiation Exposure
Compensation Standards Act, Public Law No. 98-542, § 5, 98
Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991,
Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the United
States Court of Appeals for the Federal Circuit has
determined that a claimant is not precluded from establishing
service connection with proof of direct causation. Combee v.
Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9
Vet.App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120
F.3d 1239 (Fed. Cir. 1997), cert. denied,
118 S. Ct. 1171 (1998). See Brock v. Brown, 10 Vet.App. 155,
160-61 (1997).
Thus, the presumption is not the sole method for showing
causation. However, as noted above, where the issue involves
a question of medical diagnosis or causation, as presented
here, medical evidence which indicates that the claim is
plausible is required to set forth a well-grounded claim.
Grottveit v. Brown, supra.
Upon careful review of the evidentiary record, the Board
finds it is clear that the veteran served in Vietnam during
the Vietnam era. Therefore, he is entitled to a presumption
of exposure to herbicide agents, if he has a disease listed
at 38 C.F.R. § 3.309(e). See McCartt v. West, 12 Vet.App.
164 (1999), holding that "neither the statutory nor the
regulatory presumption will satisfy the incurrence element of
Caluza where the veteran has not developed a condition
enumerated in either 38 U.S.C. § 1116(a) or 38 C.F.R. §
3.309(e)." The medical record indicates that the veteran
has been diagnosed as having left ventricular hypertrophy
with first degree AV block, chronic obstructive pulmonary
disease, and hyperinflation and bulbous disease of the lungs.
None of these disorders is among the conditions listed in the
governing regulation.
Further, the Secretary of Veterans Affairs has determined
that there is no positive association between exposure to
herbicides and any other condition for which the Secretary
has not specifically determined that a presumption of service
connection is warranted. See Notice, 59 Fed. Reg. 341-346
(1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed.
Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov.
2, 1999). Accordingly, under the law, the veteran is not
entitled to a presumption that his diagnosed left ventricular
hypertrophy with first degree AV block, chronic obstructive
pulmonary disease, and/or hyperinflation and bulbous disease
of the lungs is/are etiologically related to exposure to
herbicide agents used in Vietnam. Moreover, because the
veteran does not have one of the diseases listed in the above
regulation, even the presumption of exposure to Agent Orange
or other herbicide is not available to him. Without the
benefit of presumptive service connection, he is obligated to
submit an otherwise well-grounded claim.
In addition, since the veteran was not diagnosed with a
disease listed at 38 C.F.R. § 3.309(e), he is also not
entitled to the presumption of exposure to herbicide agents
in service, provided in 38 C.F.R. § 3.307(a)(6)(iii). See
McCartt, supra. In this regard, the Board notes that VA's
Adjudication Procedure Manual, M21-1, at Part VI, para.
7.20b, previously contained a more liberal interpretation of
the presumption of exposure, stating that "unless there is
affirmative evidence to the contrary, a veteran who served on
active duty in the Republic of Vietnam during the Vietnam era
is presumed to have been exposed to a herbicide agent."
However, this provision was revised on April 5, 1999, in
response to judicial guidance, and is now in accordance with
the McCartt decision. Hence, in the present case, exposure
to Agent Orange may not be presumed.
The Board notes, however, that the veteran has contended, in
his original claim, that he was exposed to Agent Orange in
service, and, therefore, solely for purpose of determining
the well-groundedness of his claim, these contentions will be
considered credible by the Board. See King v. Brown, 5
Vet.App. 19, 21 (1993) (evidentiary assertions by the veteran
must be accepted as true for the purposes of determining
whether a claim is well grounded, except where the
evidentiary assertion is inherently incredible or when the
fact asserted is beyond the competence of the person making
the assertion).
Nevertheless, even conceding, for this limited purpose, that
the veteran experienced exposure to herbicide agents in
service, the Board again notes that there is no credible
evidence of record indicating that the veteran has any of the
conditions specified within 38 C.F.R. § 3.309(e). Under the
present law, the veteran is not entitled to a presumption
that his diagnosed left ventricular hypertrophy with first-
degree AV block, chronic obstructive pulmonary disease,
and/or hyperinflation and bulbous disease of the lungs is
etiologically related to exposure to herbicide agents used in
Vietnam. Further, having carefully reviewed the entire
record, even if we were to concede exposure to herbicide
agents, the Board finds that there is no medical evidence of
record suggesting a connection between exposure to herbicide
agents and the veteran's diagnosed left ventricular
hypertrophy with first degree AV block, chronic obstructive
pulmonary disease, or hyperinflation and bulbous disease of
the lungs.
With all due respect for the veteran's contentions, he is not
shown to be a medical expert and, for that reason, he is not
competent to express an authoritative opinion regarding any
medical causation or diagnosis of his condition. See
Espiritu; see also Routen v. Brown, 10 Vet. App. 183, 186
(1997) ("a layperson is generally not capable of opining on
matters requiring medical knowledge").
In sum, as there is no medical evidence establishing an
etiological relationship between the diagnosed left
ventricular hypertrophy with first degree AV block, chronic
obstructive pulmonary disease, and hyperinflation and bulbous
disease of the lungs and his alleged exposure to herbicide
agents in service, the veteran has not submitted a well-
grounded claim of service connection.
ORDER
Entitlement to service connection for liver problems,
headaches, a lung condition to include shortness of breath,
dizziness, fatigue, blackouts, chest pains, and an irregular
heart beat as secondary to exposure to herbicide agents is
denied.
ANDREW J. MULLEN
Veterans Law Judge
Board of Veterans' Appeals